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CANADA INTRODUCES NEW IMMIGRATION LEGISLATION

 

By: Sergio R. Karas, B.A., LL.B.

       Karas & Associates  - In Affiliation With Hirson Wexler Perl

       Practice limited to U.S. and Canadian Immigration and Nationality Law

 

Sergio R. Karas is a Canadian lawyer, practising in the area of Immigration Law in Toronto. He is a member of the board of directors of several community organizations, and a regular speaker at international legal seminars. His comments and opinions are general and are not intended to be interpreted with respect to any specific situation.  He can be reached at Karas & Associates, (416) 506-1800 or through e-mail at skaras@hirson.com.

 

 

On February 21, 2001, the Government of Canada tabled in Parliament Bill C-11, the Immigration and Refugee Protection Act which, if approved, will introduce sweeping changes to Canadian immigration law and policies and will have consequences for all categories of applicants.

 

The main proposed changes are as follows:

 

FAMILY CLASS IMMIGRATION

 

o        Expanding the definition of “family class” raising the age of a “dependent child” from the current 19 years old to 22 years old;

 

o        Opening up adoption provisions in keeping with the principles of “best interest of the child”, as articulated by Canadian courts;

 

o        Changing the definition of “family” to include common law and same-sex partners;

 

o        Facilitating family reunification by creating an in-Canada landing class for sponsored spouses and partners for both immigrants and refugees;

 

o        Exempting sponsored spouses, partners and dependent children from the admission bar with regard to excessive demand on health or social services;

 

o        Reducing the age at which Canadian citizens and permanent residences are eligible to sponsor from 19 to 18 years of age;

 

o        Including “parent” in the definition family class;

 

o        Reducing the length of the sponsorship requirements from 10 years to 3 years for spouses and common law partners.

 

SELECITION OF SKILLED WORKERS

 

o        Modernizing the selection system for skilled workers, moving away from an occupation-based model to one focused on flexible and transferable skills; assigning more weight to education;

 

o        Increasing the relative weight of having knowledge of an official language but ensuring that language is not a bar to admission;

 

o        Creating and “in-Canada landing class” for temporary workers (including recent graduates from Canadian schools) who have a permanent job offer and who have been working in Canada.

 

TEMPORARY WORKERS

 

o        Expanding the temporary worker program by facilitating the entry of temporary workers through a more service-oriented criteria and pursuing agreements with individuals or firms to identify and meet short-term labor market needs, while respecting the terms of applicable federal-provincial agreements.

 

SPONSORSHIPS

 

o        Increasing sponsorship obligations by preventing people in default of court-ordered spousal or child support payments from sponsoring;

 

o        Preventing individuals convicted of a crime related to domestic violence from sponsoring, unless a pardon has been granted or rehabilitation has been demonstrated; 

 

o        In addition, the government is attempting to implement provisions that will enable it to recover the cost of social assistance in cases of sponsorship default; 

 

o        Individuals on social assistance will not be permitted to sponsor.

 

BUSINESS IMMIGRANTS

 

o        Business immigration will be more tightly controlled, establishing objective criteria to assess business experience for both investors and entrepreneurs and creating a new “net worth” requirement for entrepreneurs, to be implemented by regulation.

 

 

 

 

RESIDENCY REQUIREMENTS

 

o        Permanent residences will be subject to a “physical residency” requirement.  To retain permanent resident status, a person will have to be physically present in Canada for a cumulative period of 2 years for every 5 working years.  People who spend time overseas for specific reasons, such as to accompany a Canadian citizen or to work for a Canadian employer, or for humanitarian reasons, will retain their status.  The government will also attempt to develop a fraud-resistant permanent resident card.

ENFORCCEMENT

Another area where drastic changes will take effect if the new legislation is approved is enforcement, with increased penalties for violators.  The main changes proposed are as follows:

o        Increase in penalties for existing offences;

o        Creating a new offence for human trafficking;

o        Extending Criminal Code counterfeiting provisions, which currently apply to passports, to cover any migration document or travel document, with an exemption for refugees;

o        Allowing for a seizure of assets in case of migrant smuggling and trafficking;

o        Provide new authority to seizing citizenship documents to prevent fraud;

o        Creating a new offence for people who counsel a person to misrepresent himself or herself or to commit an offence under the Act;

o        Creating a new offence for the possession and laundering of proceeds for immigration offences;

o        Raising the penalty to life in prison for migrant smuggling and trafficking.

EMPLOYERS MUST EXERCISE DUE DILIGENCE:

The new legislation prohibits the employment of a foreign national who is not otherwise authorized to work in Canada and imposes the requirement of due diligence to be exercised by employers to satisfy themselves that a foreign national has the required authorization.  It must be noted that the legislation deems failure to exercise due diligence a contravention of the provisions of the new Act, enabling potential prosecution of employers. Although due diligence is also a defense under the new Act, employers will be required to exercise great caution when hiring foreign nationals, to avoid liability.

 

MAKING AND COUNSELLING FALSE STATEMENTS

The new legislation provides tough penalties for those who knowingly make false statements or counsel others to do so.  These provisions seem to be specifically aimed at certain individuals, who routinely counsel their “clients” to misrepresent, mislead or present false information to Immigration officials, whether orally or in writing.  The text of these important provisions is as follows:

Employers will have to be particularly careful when applying for employment authorizations on behalf of employees, to avoid potential liability. For example, if an employer applies for an authorization for a short period of time for an employee who may otherwise be subject to a medical examination (citizens of certain countries are subject to a medical examination requirement if they will be in Canada for more than six months) it could be construed as attempting to defeat the administration of the Act if the employee remains in Canada longer than expected and an extension of his status is necessary, provided the “real” length of stay was known at the outset of the initial application. Also, if an employer is found to have counseled an employee to make inaccurate statements upon entry to Canada, it could potentially be subject to prosecution. Caution will have to be exercised at all times when dealing with any applications for status in Canada.

EXCLUSION FROM THE REFUGEE DETERMINATION SYSTEM

o        Serious criminals will be denied access to the Refugee Determination System;

o        A “serious criminal” is defined as someone who has been convicted of an offence punishable by 10 years or more and who has received a sentence of 2 years or more in Canada.  People convicted of an offence punishable by 10 years or more outside Canada will only be excluded if the Minister finds them to be a danger to the public.

As it can be readily seen, those who make or counsel others to make false statements will face very severe penalties.

ELIMINATING APPEALS

o        People who present a security risk, serious criminals, members of criminal organizations or war criminals, will no longer have access to an appeal at the Immigration Appeal Division, but will continue to have recourse to judicial review with leave by the Federal Court.

Those who are interested in immigration to Canada must note that, since the Bill has just been introduced, it will take some time until it is debated by Parliament and eventually passed.  This provides a window of opportunity to file applications for permanent residence immediately, which will continue to be subject to the current legislation until the new Bill comes into effect.

 

For further information please contact Sergio R. Karas, B.A., LL.B, at (416) 506-1800 or email at skaras@hirson.com